British Parliament passed the India Independence Act on 18 th of July 1947. Implementation of this act, on the decided date of 14th and 15th August 1947, divided the Akhand Bharat into two nations, giving birth to the newly created nation of Pakistan. The Redcliff line drawn by Sir Cyril Redcliff demarcated the portions of land of Punjab province and Bengal presidency as a separate nation and the fellow countrymen, who had resided and survived as citizens of one nation – Bharatvarsh, turned into subjects of another country. As soon as Bharat obtained independence, the supremacy of the British crown, over 562 Princy states also ended and the states became separate entities.

But, the era of Monarchy was on its decline and the roots of the democratic system had been sown. Thus, with immense efforts by Sardar Vallabhbhai Patel, merged the majority of Princely states into Bharat.

The Government of India Act, which was included in the Independence of India Act 1947, underlined, that the decision about the accession was to be taken by the head of the state and there wasn’t any provision for conditional accession.

Maharaja Hari Sinh, as a result of the uncanny situation arising in his state,  was unable to take a decision on whether to join Bharat and Pakistan, but eventually decided to sign the instrument with Bharat, annexing his princely state of Jammu-Kashmir in Bharat.

While he signed, the conditions applied were similar to that applicable to all the other princely states, and no special privilege was granted. The instrument of accession was signed by Maharaja on the 26th of October 1947 to which, the then Governor General of Bharat – Lord Mountbatten had put his signature on the next day, that is on the 27th of October.

Article 1 and Article 9 of the accession document of Jammu-Kashmir signed by Maharaja Harisinh and accepted and thus signed by Lord Mountbatten, portray the infinite accession.

In fact, the Constitution formation committee had representatives from most of the states and they were nominated by the constituent assembly of the respective State. Thus, four members were nominated from the state of Jammu-Kashmir. 

The Constitution of Bharat before being adopted by the Union Constituent Assembly, all the princely states issued a proclamation stating their acceptance of the Constitution. Yuvraj Karn Sinh, in his capacity as Sadar – e – Riyasat had signed the proclamation on the 25th November 1949.

The “Independence of India Act 1947”, did not have any provision for change of mind or change opinion, after the signature of the Maharaja accepting annexation. Neither the subjects of the state nor the members of the administration could alter the statement in the instrument.

Immediately after the independence, the process of amalgamation of princely states began across the nation. Within a short span of time, with stupendous efforts by Sardar Vallabhbhai Patel, the in-charge minister for Princely states, most of the states had annexed Bharat. The state of Jammu and Kashmir was still in a dilemma as their connectivity was passing through newly formed Pakistan and the political scenario within the state was like a volcano. Thus, Maharaja was contemplating whether to join the Dominion of Bharat led by Pandit Nehru (we have seen the reason for strained relations between them) or not. Amidst all this irresolution, the Pakistani army, disguised as the kabila raiders attacked the state and captured a particular area of the state.

Under the grave situation of uncertainty, the Maharaja signed the instrument of accession with Bharat. Undoubtedly, the instrument had exactly the same term as that was for the rest of the rulers of other princely states, yet due to the grave crisis and discrepancy between the then Maharaja Hari Singh ji and the largest political outfit of the state, the disputes were burgeoning constantly and rapidly. Thus, the framers of the Bharatiya Constitution made some temporary provisions, for the state of Jammu-Kashmir. 

Narsimha Gopal Swami Iyengar was the Prime Minister of the state of Jammu-Kashmir from 1937 to 1943. Later, he was given charge of Jammu-Kashmir affairs by Pandit Nehru, following his (Pandit Nehru) indifferences with Sardar Patel regarding Kashmir matters. Ideally, Sardar Patel who was in charge of accession of all princely states, should have been handling Jammu-Kashmir, too as the instrument of annexation was exactly similar but due to Pandit Nehru’s proximity towards Shaikh Abdullah and National Conference, he had ample disagreements with Sardar Patel regarding the approach towards the state. Pandit Nehru appointed N. Gopal Swami Iyengar, as he had served earlier as its Prime Minister, Pandit Nehru handed him the charge of the state, displeasing Sardar Patel. Iyengar led the delegation to  United Nations Security Council regarding the plebiscite in the state.

In August 1947, he was appointed to the thirteen-member drafting committee of the Bharatiya constitution.

On 17th October 1949, Gopal Swami Iyengar, introduced Article 306-A, in the Constituent Assembly of Bharat as a TEMPORARY MEASURE. Article 306 was never included in the original draft of the constitution submitted by the committee, presided by Dr. B R Ambedkar.

Article 306-A had been turned into Article 370.

This “temporary measure”  granted the state and local autonomy, and except for Defence, Foreign Affairs and Communication (matters specified in the instrument of accession, the Bharatiya Parliament required the State Government’s approval to implement law relating to any other subjects. Even policies and laws related to Fundamental rights, ownership of property, and Citizenship.

As a result, the laws incorporated by the J&K Government, have not always been synchronized with the Bharatiya laws and hence, the people of the state, several times have been able left out, from receiving the benefits from it.

The special status should have ended after 1954 when the situation had been normalized to a large extent. The endorsement of the accession was done by the Constituent Assembly on the 15th of February 1954, casting a unanimous vote. Thus, the continuation of the Special status, separate flag, and the post of Prime Minister was nothing but the symbols of separatism and they were protected by Article 370.

But, unfortunately, the idea of separatism was very subtly aired by the then Governor General. We have seen earlier, that the Western nations, did not want the Jammu-Kashmir to be annexed to Bharat, for their own economic benefits. Hence, openly unable to oppose the stand taken by Maharaja Hari Singh,  Lord Mountbatten did not leave the chance of stressing upon a special clause, in the case of Jammu-Kashmir’s accession.

On the 27th of October 1947, Lord Mountbatten had no choice but to approve the Instrument of Accession signed by Maharaja Hari Singh. While signing, he wrote him a letter: ” My Government has decided to accept the proposal of Accession of Kashmir province with India. But, our Government wants to maintain the policy that wherever there is controversy regarding accession of a state, the decision should be left with the people.”

This clause was not the requirement of the accession Jaw, based on the Indian Independence Act of 1947 that read along with the Government of India Act of 1935.

In fact, Maharaja Hari Singh had made the absolute accession with the dominion of Bharat and had written an extensive letter to Sardar Vallabhbhai Patel on July 15th, 1948, clearly stating that – ” We are interested in the progress of the whole of India.”

Quoting him: ” Everybody is aware of my view on this issue and I have expressed it on several occasions. In brief, we want due place in the new constitutional structure of India. We hope that India will emerge as a great country in the world and will contribute to the solution of problems of mankind through its influence and global fraternity as well as great culture.”

The President of Bharat issued an order called Constitution Order on the 14th of May 1954. This order was applicable to the state of Jammu-Kashmir and the significant motive behind its application was for clarification about the application of provisions in Article 370.

Article 368, emphasizes the procedure for making any amendments in the existing article.

An amendment to the Constitution may be initiated by the introduction of the Bill, in both houses of parliament and it has to be passed by not less than two third of the members.

But, the presidential order (Constitutional Order, if We say so) was not passed following this procedure as a Bill nor was the Parliament informed about the incorporation of such an article in the Constitution!!!

It is crystal clear that the President of Bharat does not have the authority to amend the Constitution of Bharat, except through the presentation of a bill for the purpose of the Parliament.

Thus, the entire introduction and the implementation of Article 35A, is based on imbecility and it does not have legal validity, as it was included in the Constitution without following the set procedure laid down under Article 368.

The state Government of Jammu-Kashmir had been claiming that they had followed the law which was prevailing in the state under Maharaja Hari Singh’s rule. But, Maharaja’s legacy had allowed people from outside the state to become permanent state subjects, if their service were necessary for public good. 

Dwelling deeper into history, and openly welcoming the migrators had been the practice of Jammu-Kashmir rulers in the ancient and medieval periods and that is how Islam could enter the region.

But, this government in the state, was making spurious fallacy.

Article 35 A had been introduced in relation to Permanent residents and their rights : 

A) Defining the classes of persons who are or shall be permanent residents of the state of Jammu-Kashmir.

B) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions.

1) Employment under the state government.

2) Acquisition of immovable property in the state.

3) Settlement in the state.

Or

4) Right to Scholarship and other forms of aid.

Article 35A  – Any person who has migrated to Jammu, after 1944 can not be granted the right for permanent residence, and only those residents who have obtained PR by way of a State Subject Certificate issued by the Maharaja ten years before the promulgation of the Constitution of Jammu-Kashmir are entitled to the same.

Article 370, enforced by Article 35A had turned the state of J&K into a land of discrimination for the underprivileged and Women.

Bharatiya Constitution, since its inception in 1950 has always granted women equal rights as men. From Voting rights to Property rights to Legacy rights, women have been considered equal. But, the Women in Kashmir did not enjoy this privilege. However, astounding it may sound, the women of Jammu-Kashmir, under the 

Article 35 A, did not possess the right to get a PRC (Permanent Resident Certificate), if she chose to marry an outsider, she could not settle or buy or own any property, in the state of Jammu-Kashmir, neither apply for a Government job nor her children could get admission in the state-run professional institutes.

This propagated that a Kashmiri woman, marrying outside the state, would be compelled to leave the state and settle elsewhere as she loses all the entitlement to her Motherland.

After a long battle, in 2002, the women of the state won the right to retain their PRC or Permanent Resident Status after marriage but it was restricted to them and could not be extended to their off-springs. The children of Kashmiri daughters were not eligible for admission to professional colleges or apply for Government jobs, neither could inherit their Mother’s property or buy property within Jammu-Kashmir. This situation was exceptionally traumatic for women marrying outside and later getting divorced or becoming widows.

The PRC impacted the Jammu region, much more than people in Kashmir valley as the larger population of Hindus residing in Jammu had been abutting to Punjab and Himachal Pradesh and it led to closer Cultural and matrimonial ties with them.

Ironically, the men of Jammu-Kashmir (permanent residents) who marry outside the states, had all the privileges entailed. Their wives, from any corner of the world, were entitled to obtain PRC as well as the children born from their nuptial could also acquire the PRC rights, without any hassle.

The migrants from across the border, who migrated to the state of Jammu-Kashmir at the time of partition in 1947, had been living in the state for the last Seventy years but even after Seven decades they were identified as “Refugees”. The generations had passed but they were still denied any fundamental rights!!!

Moreover, the Pakistani attack after the partition in October 1947, forced people (especially Hindus and Sikhs) to migrate to Kashmir under Bharatiya rule from the Pakistan Occupied Kashmir (POK). They were the original state subject as the area captured by the Pakistani raiders belonged to the princely state of Jammu-Kashmir. They too were denied residency rights and ordered to settle in faraway regions of the nation.

During partition, a huge mass of migrators entered Jammu being the nearest destination. These refugees were assured of all facilities by the then Prime Minister, Shaikh Abdullah, and they were allowed to ‘settle’ on the lands of the area near the border in the Jammu region. Imagine, they have been living on the Bharatiya soil, for the last Seven decades but denied each and every fundamental right like Voting, Education, and Job opportunity, right to buy property. They were allowed to settle there to keep the vigil on the volatile border and they were the easiest target of Pakistani firing, which happened very frequently.

Around 5764 families consisting of 47, 215 persons migrated from across the border, the newly formed Pakistan in various areas of Jammu division.

No land was allocated to them, with their name on the property card. These refugees were allowed to occupy some area which they could retain but as the title of the said land was not conferred on their name, they had no right to buy or sell any piece of land.

The refugees – The West Pakistan Refugees (WPR) were mostly from the deprived class and around 80 % of them belonged to Schedule castes. Due to the implication of Article 35A, they were not permitted to buy, sell, or own land. They were compelled to work as Tiller, Labourers, and Tenants but could never become a Landlord.

In Seven decades, their population has also grown manifolds and is more than three lakhs. The land that they have RETAINED (and not own) needs to be increased to accommodate their growing population. Denied permanent status in Jammu-Kashmir, has led them to continue living in poverty-stricken conditions. They are disallowed to avail the benefits of various social welfare schemes launched by the state government. The children are not entitled to receive scholarships and freeships available to the Permanent residents.

They are not even eligible to cast their votes in State Assembly Elections. Their participation is nil even in local village body panchayats or self-governing bodies with no role to play in the law-making procedure.

The victims of the Partition, who had migrated to the Bharatiya territory with the ray of hope for a better future (at least as much as they lived before independence) have been forcefully turned into the second-class citizen. The most heartbreaking story is of the Valmiki community, who were brought to Jammu-Kashmir from Punjab in 1957.

In 1956, Bakshi Ghulam Mohammad, the then Prime minister of J&K, invited 200 families from Punjab to work as Safari kamdar (Sweepers) during the major sanitation crisis. In 1957, on their arrival, they were promised proper rehabilitation as Permanent Residents. They were granted Conditional Resident Certificates, valid for the job of Sweepers only!!!

Due to the Conditional Resident status, their children, who have studied till the Graduation level but are not qualified to obtain a Government job!!! Imagine, the educated youth of the Safai Karmchari can only be eligible to work as the Safai Karmchari and not beyond!!!

The colony allocated to the Safai Karmchari, to reside, in had not been regularised for more than six decades. These Safai Karmchari were entitled to vote for Lok Sabha elections but not for the state or municipality elections.

The Gorkha community constitutes a very significant part of the Bharatiya army.  Earlier, in the Eighteenth century, the Gorkhas had come to settle in the Jammu-Kashmir and the majority of them were soldiers that fought in the ranks of Maharaja Ranjit Singh of Punjab. Gulab Singh, a landlord of Jammu became his commander-in-chief. They have resided in the state for more than a hundred years.

They are around One Lakh in number and have been residing across the Jammu-Kashmir, including the Kashmir Valley and Ladakh.  Unfortunately, they too have had to face difficulties in acquiring PRCs, without which the Gorkha youth is unable to obtain respectable and worthwhile jobs.

Hence, they remain economically as well as socially backward.

In the background of these yielding, it was discernible that Articles 370 and 35A were legally as well as ethically unwanted. Its features were not compatible with the motive of the Constitution of Bharat and hence, it was a grave constitutional issue and had turned into the medium for appeasement.